Green Decisions - 2000

Center for Social Justice [Janvikas] V. Union Of India. Spl. C. A, GJLR Vol. XLI (3) 2000, 1997 [ J. M.

Shah and J. R. R Tripathi, JJ.]

R.A. Goel v. Union of India and Others AIR 2000 P& H 320

Narmada Bachao Andolan v. Union of India & Others SC 319 of 1994, 18 Oct. 2000 [2000] 4 Law

Reports of India [ Dr. A. S Anand CJI, SP Bharucha and BN Kirpal, JJ.]

All India Mobile Zoo Owners and Animal Welfare Association v. Union of India AIR 2000 Delhi 449

M.C. Methta V. Union of India and Ors(2000 6 SCALE 315] [Re: Brick kilns matters relating to

surrendering of land]

Comdr. Sureshwar D.Sinha and Ors v. Union of India nad Ors (2000 6 SCALE 146 Order of August 4,

2000)

C. Kenchappa and Ors v. State of Karnatak and Ors 2000 AIR 2579

Goa Foundation and Ors. V. State of Goa and Others W.P. No. 102/1996 decided on 3rd and 4th July,

2000 (unreported)

M/s Chandmari Tea Co. and another v. State of Assam and others (AIR 2000 Gauhati 13 )

D.K. Joshi v. Chief Secretary, State of UP AIR 2000 SC 384

Bijayananda Patra and Ors vs. District Magistrate, Cuttack and ors (OJC No.3166, 4281 and 7608 of

1997) Unreported Judgement

Suo Motu v. Vatva Industries Association Ahmedabad and Others AIR 2000 GUJ 33

U.P. Pollution Control Board v. M/s Mohan Meakins Ltd., and Ors 2000(2) SCALE

Centre for Social Justice[Jan Vikas] v. Union of India Special Civil Application 8529/99 Date of order

17/2/2000. (Unreported Judgement)

Almitra H. Patel v. Union of India AIR 2000 SC 1256

B. N kripal, D. P Mohapatra and R. P Sethi, JJ

Kennedy Valley Welfare Association v. Ceylon Repatriates Labourers Welfare and Service Society

2000(2) SCALE 143

Ramji Patel v. Nagrik Upbhokta Marg Darshak Manch (2000) 3 SCC 29.

State of Himachal Pradesh v. Smt. Halli Devi, AIR 2000 H. P 113

R. L Khurana, J.

M.C. Methta V. Union of India and Ors(2000 6 SCALE 315] [Re: Brick kilns matters relating to

surrendering of land]

Applications were filed by the brick kiln owners of Delhi for modification of the order in which the

applicants had been directed to surrender the land without being paid any compensation. In the

earlier order of the Supreme Curt in 1996, industries which were placed in category H, according to

Delhi Master plan 1990 were required to close down and /or to be shifted out of Delhi within three

years of the master plan coming into effect. In the Master Plan of 1990, brick kilns were not shown

as a category H industry. But the Delhi pollution Control Committee in their report submitted to the

Supreme Court on 1996 apprised the fact that 246 brick klin are operating in NCT of Delhi. While

ordering closure and shifting of these industries in Delhi the Supreme Court in their earlier

judgement had directed that the use of the land which would become available on account of

shifting/relocation of brickkilns shall be permitted in terms of the order of 10th May, 1996. It was

also stated that that brickkilns shall be given incentives and brickkiln should shift to fly ash

technology. The court in their order held that with the closure of brickkilns or the change in use to

fly ash technology, the owners of the land in which they are situated would not be under any

obligation to surrender the land. To that extent the order of 26/11/96 got modified. The court also

made it clear that this order will not apply to those brick klins owners who have availed this court

order dated 26/11/96 and have benefitted in the same in the matter of relocation.

Comdr. Sureshwar D.Sinha and Ors v. Union of India nad Ors (2000 6 SCALE 146 Order of August 4,

2000)

The Supreme Court in their earlier order on Yamuna Pollution had asked the Ministry of

Environment and Forests, New Delhi to apprise them the necessary steps taken by the Government

on cleaning river Yamuna. In the affidavit the Deputy Secretary of MoEF stated that a committee

constituted for this purpose has reiterated that 2005 may be treated as the cut off point for cleaning

of Yamuna in Delhi. The court asked the Additional Solicitor General to explain the court on the next

hearing as to why despite orders having been passed regarding cleaning of Yamuna will continue to

be polluted till 2005. Interim report filed by the Committee constitute by the Court indicates that

water harvesting is under way. Addition Solicitor General informed the court that check dams have

been constructed and as a result that of there has been a positive impact and the water table at

some places has gone up to 2 mts. He submitted that with regard to the water harvesting in certain

blocks of Vasantkunj, the proposal of the committee was that there should be active participation of

the residents and with this aim in view it is proposed that 50 percent of the expenses to be incurred

in water harvesting, in those blocks should be contributed by the owners of each flats. The amount

involved would come rupees1000 per flat. The court issued notices to the presidents of the

respective welfare association to show cause why they should not direct the payment of the said

amount by flat owners. The court also clarified that Delhi Development Authority is at perfect liberty

to set up any other projects in any other area to clean river Yamuna

C. Kenchappa and Ors v. State of Karnatak and Ors 2000 AIR 2579

The Public Interest Litigation filed by the inhabitants of Hoodi, Pattandur, Nallurhalli, and Kundalhalli

villages of K.R. Puram Hobli, Bangalore South Taluk questioned the validity of notification under

section 3(1) of the Karnataka Industrial Area Development Act and Sought for a writ of certiorari for

quashing the order made by the respondent in favour of certain industries. The petitioners

contended before the Court, that part of the land notified for industrial purpose is Gomal land and

other part falls under the category of green belt of compressive plan and residential area. They

pointed out before the court that the Gomal land, if converted to residential area, the village will

loose the land reserved for grazing their cattle and the same will cause hardship to the cattle. The

prayer before the Court was the Gomal and the land reserved for residential purposes in the green

belt area should not be allotted and acquired for non agricultural purposes including industrial

purposes. The respondent in their objection filed before the Court stated that though these lands

are Gomal lands, but the said land is not used as Gomal land as urbanization has spread in those

areas and number of industries have come up in the are. They also told the court that they have

power under various provisions of law to acquire such lands after complying with the requirement

and they have complied with same. The company to whom the site was given also assured the court

that they are going to establish a research and development project to be built as per GE's world

class environmental health and safety standards employing atleast state of the art technology for

waste handling and disposal. The court considering the importance of environment and ecology and

rights of a citizen to have pollution free air and water and various decisions of the Supreme Court

observed that in order to maintain ecological equilibrium and pollution free atmosphere in the

villages, the authorities under KIADB Act are to leave 1 km as buffer zone from the outer periphery

of the village in order to maintain a green area. The court without interfering with the acquired land

for one industry, directed that whenever there is acquisition of land for industrial purpose or

commercial purpose or no agricultural purpose, except residential areas, the concerned authorities

must leave on km of the area from the village limit as a free zone or green area to maintain

ecological equilibrium.

Goa Foundation and Ors. V. State of Goa and Others W.P. No. 102/1996 decided on 3rd and 4th July,

2000 (unreported)

The petitioner challenged the order of the Goa Govt. Approving demarcation of High Tide Line. The

reason stated in the petition was such demarcation is not in consonance with the CRZ Notification,

1991. The petitioners contended that for several years the respondents have been following HTL

demarcation which is as same under CRZ Notification 1991 as amended on 1994. Certain resort

developers who have raised construction within the 200 meters zone had sought to raise dispute

about the demarcation of HTL in and attempt to regularize their illegal constructions. The State Govt.

without consulting the MoEF, Government of India has taken the assistance of surveyor General for

demarcating HTL lines. But the surveyor General has demarcated on HTL for approximately 27 km of

Goa State from Valsao to Cavelossim beach stretch in South Goa. The other part of Goa coast HTL

demarcation was not done by surveyor General of India. The HTL drawn for the aforesaid stretch is

at variance with HTL demarcation required under CRZ. There are now two different HTL lines for

different areas of Goa only one of which meets the provisions of CRZ notification. The allegation of

the petitioner is that the HTL drawn by surveyor General is on average 40-60 meters closer to sea.

Developers have the advantage of constructing resorts closer to the sea and sand dunes in the 27 km

stretch on account of this. The State Government has not authority to allow such construction by

permitting those structures as there are two HTLs in the same state. It was also pointed before the

court, that the power under the CRZ is available only to the demarcating authority to e appointed by

Central Government and it is not the surveyor General of India. After perusing, the records and

arguments of both the parties, the Panaji bench of High Court of Mumbai declared the order the

State Government as null and void and made the prayers of the petitioners absolute.

M/s Chandmari Tea Co. and another v. State of Assam and others (AIR 2000 Gauhati 13 )

Seven writ petitions were filed in the Assam High Court challenging the various notifications issued

by the Govt. of Assam notifying extension of the territory of Burachapari Reserve Forest and

Kaziranga National Park as per the schedule mentioned in those notifications. Some of the

petitioners have also challenged the cancellation of grazing permits and prayed for a direction to

provide for alternative pasture ground for grazing their cattle. The High Court clubbed all the all the

writ petitions and disposed the matter through a common judgement as the facts and points of law

involved in these cases were common. In one petition the petitioner challenged the notification

issued by the regional forest officer, Bagori under by which the petitioners were asked not to

proceed with the Tea Plantation in the area in question which was handed over to the Forest

Department by the Revenue Department for the purpose of the movement of wildlife to take shelter

in the adjacent hills during the rainy and floor season. The petitioner contended before the court

that the petitioner company had been running the tea estate for sixty years and carrying on

plantation and manufacturing of tea in the said Tea Estate. Out of total garden land of 2538 bighas,

2189 bighas are periodic patta land belonging to the petitioner and the remaining 349 bighas are

government land in respect of which the company has been paying revenue since 1935. It is further

contented that the settlement of the said land is under consideration by the Government. In 1977

about 37 bighas of land has been acquired by the government for the purpose of laying pipeline by

Oil India Limited and tea bushes worth lakhs of rupees were destroyed. It seems from the facts of

the case that the petitioner company had taken a huge amount of bank loan for the tea plantation.

Under section 35 of the Wild Life Protection Act, 1972, the Government incorporated certain areas

of Kanchanguri village measuring about 89.754 hectares into Kaziranga National Park. It is contented

by the petitioner that the description given in the notification was confusing and incorrect. Though

as per the same notification no portion of the garden land of the petitioner falls in the Kanchanguri

village but references were made to certain areas crossing the boundary of the petitioners tea

estate. The petitioner stated that no opportunity of hearing was given to him. Again the Secretary

Forest Department issued a notification under section 35 of the Act where no reference was made

as to the petitioners tea estate. Even the Government circular issued by the revenue department did

not disturb the petitioner till the issuance of the impugned notification. In the mean time the

petitioners claim for the settlement of land in question is pending. The petitioner further contended

that the transfer of land in question from the Revenue Department to The Forest Department could

not take place when the prayer for settlement of land was under consideration. The Collector and

the Sub Deputy Collector of the concerned region had submitted a report in favour of the petitioner

recommending the settlement of the aforesaid land in favour of the petitioner. In the second

petition the petitioner was the President of a ME School of village Thutechapari Dist. Sonitpur. He

challenged the notification issued by the Commissioner, North Assam division, directing him to

showcause with all papers and documents as to why a right and title of the school in respect of the

land in its occupation should not be declared illegal and should not be cancelled. The petitioner

contended before the court that the land in question was allotted to the school by the Sub-Divisional

Officer of Bishwanath Division and hence this notice by the respondent was illegal. In the third

petition the petitioners were the Managing Committee members of two lower primary schools. They

challenged the notice issued by the Commissioner, North Assam Division, regarding the land of the

school. The petitioner were placed before the court the records of the lands which were allotted by

the Government for the establishment of the schools. They contended that if the land were taken

away under Section 20 of the Wildlife Act, 1972, the students, mostly belonging to schedule cast

community will suffer immensely. In the fourth petition the petitioners has challenged the process

of inclusion of two areas within the boundary of Kaziranga National Park. The petitioners stated that

the village of the petitioner occupied the land in question by paying taxes and the lands were settled

in their favour on annual patta basis by the Deputy Commissioner in the year 1967. The grievance of

the petitioner was that the notification of the Government declared an area of approximately 40.50

hectares within the area of Kaziranga National Park under Section 35 of Act 1972 as reserve forest.

Despite the villagers filing the representation against the notification, the forest department had

attempted to evict the villagers. Against the eviction process, the petitioner preferred a petition

before the court and the Division Bench of the court directed the institution of an enquiry as per the

notification, and ordered that during the pendency of the enquiry the petitioner should not be

evicted. The petitioner alleged that no enquiry had been conducted by any authority as it and the

villagers are still under threat of being evicted from the land in question any time. In the fifth

petition the petitioner challenged the notification issued by the respondent under section 26-A(i) of

the 1972 Act declaring the Burachapri Reserve Forest to be wildlife sanctuary and also prayed for a

direction restraining the respondents from evicting the members of the petitioner societies from the

land in the respective individual possession. The petitioner was representing 2000 people who were

engaged in the business of cattle rearing and supply of milk under professional graduates and had

been living in the area for over 80 - 90 years with semi-permanent structure. The petitioner

continued before the court that after conversion of Burachpari grazing reserve into reserve forest in

1975. The members of the petitioner society continued to remain in the reserve forest with the

limited rights privileges and concessions they were issued grazing permits on payment fees. In the

sixth petition the petitioner challenged the notification in which the government had ordered of

cancellation of grazing permits In the seventh petition the petitioners stated that they had been

rearing their cattle in chars and chaprasis by establishing cattle sheds. The Government of Assam

Notification declared the char occupied by the petitioner to be included in the Kaziranga National

Park. The petitioner prayed for the settlement of land under their occupation. The government

contended before the court that in all the seven petitions false claims had been made their cases

would not stand before the court. All the villagers had encroached the government land on one

pretext or the other and asked for settlement of land in dispute. The court after going through the

different sections of the Wildlife Protection Act, Land Acquisition Act and Forest Act and the

Constitutional protection relating to protection of forest and wildlife of the country examined

whether the declaration made by the government to convert the reserve forest into wildlife

sanctuary was made without inviting claims and objections in compliance with the statutory

provisions. The petitioners alleged before the court that the declaration made by the government

was made surreptitiously, behind the back of the people in violation of the statuory principles and

natural justice. The court after going thorough the records observed that while adding the areas in

question to the national park-sanctuary, the government had followed the due process of law by

inviting objections and claims and also decided to compensate them in accordance with law . The

court directed the government to proceed adding the areas in question and complete the process of

determination of rights and acquisition of land or rights as contemplated by the Act and dismissed

the claims of the petitioners.

D.K. Joshi v. Chief Secretary, State of UP AIR 2000 SC 384

The petitioner, an inhabitant of Agra towns filed the writ petition alleging that the supply of drinking

water in Agra was extremely polluted and it was unhealthy for human consumption. The petitioner

also stated in the petition that despite several legislation conferring powers and duty on different

agencies to combat pollution, these authorities had not exercised their powers as a result of which

the citizens of Agra were suffering. This petition was filed in 1992 After the issuance of court notice,

the concerned authorities had filed their affidavits. The court after a perusal of the affidavits found

that some initiatives had been taken by the authorities in discharging the statuory obligations but

they had not taken adequate steps to prevent and control pollution. NEERI was called upon to

submit a report in which it indicated the long term measures which could be taken in relation to the

supply of drinking water as well as sewerage and drainage system and disposal of solid waste in the

city of Agra. The court had also passed several orders prior to these orders to the State Government

of UP to take definite steps in the supply of drinking water, providing adequate sewerage and

drainage system and providing measures for disposal of solid waste. The government submitted

many reports in the court. As the case was pending before the Supreme Court for more than seven

years the court found it necessary to issue certain directions and dispose the writ petition. The court

directed the State Government to setup a monitoring committee under the Chairmanship of

Commissioner of Agra Division. The monitoring committee would be authorized to take the help of

any other person whom it considered necessary to implement the reports submitted by NEERI,

expeditiously. The notification forming the committee would be issued by the State of U.P. within

three months from the date of receipt of the Supreme Court order. The monitoring committee

would also be entitled to examine the money that was being spent in each of the projects and

ensure proper utilization of the money. The Court also stated in their order that if the committee felt

that action was required to be taken by the State Government in respect of some officers or

organizations of the State, the committee could can recommend the same to the Chief Secretary of

U.P. who shall thereafter take appropriate action as required under law.

Bijayananda Patra and Ors vs. District Magistrate, Cuttack and ors (OJC No.3166, 4281 and 7608 of

1997)

Unreported Judgement' The Public Interest Litigation relates to noise pollute in different parts of

State of Orissa caused due to use of high sounding explosive fire works and blaring sound producing

devices and the effect of the resultant noise pollution. It was submitted on behalf of the State

Pollution Control Board that the State of Orissa has Fire Works and Loud Speaker (Regulation) Act

1958 for the purpose of regulating display of explosive fire works and use of loud speaker. Section 3

of the Act prescribes the restricted zones and time period for use of loud speaker and display of

explosive fireworks within permissible time and also provides that permission for the same had to be

obtained for its use within the restricted use. Contravention of any of the provision of the Act invites

penalty by way of imprisonment and fine. The enforcing authority under the said Act is the District

Administration and the Pollution Control Board has no power to intervene in this matter. The High

Court after discussing about the intention of the enactment of specific pollution control legislation

observed that noise code regulating all aspects of noise pollution should be the immediate concerns

of the Government. As the problem of noise pollution has already crossed the danger point and

noise like a smog is threatening as a slow agent of death. The Court directed the State Government

to take some measures in curbing the noise pollution. (i)The prescribed standards regarding noise by

Government of India may be enforced strictly in letter and spirit. ii) Separate courts regrading noise

pollution may be established. (iii)The cases should be decided within a prescribed time-limit.(iv)All

District Magistrates and Sub-divisional Magistrates should be empowered to issue prohibitory orders

under Section 144 of the Codes of Criminal Procedure, 1973 limiting the hours of loud speakers in

religious places and for other social gatherings and functions. (v)The subject of environment

protection may be made compulsory at school, college and University levels.(vi)The press and media

should play a constructive role to highlight disastrous effects of noise pollution and its remedy.

(vi)The District Administration and the State Pollution Control Board shall work out the modalities to

prevent catastrophic effect of noise pollution by ensuring strict compliance with the statutory

provisions, scanty though they are.(vii)Both Central Government and State Government should

consider the desirability of having adequate legislative measures to prevent this fast growing

menace which, though it appears to be 'silent' has in fact potentialities of producing a future

generation of deaf persons. (ix)Permanent monitoring bodies should be appointed to make periodic

review of the situation and suggest remedial measures. The composition of such a body has to be

determined by the State and Central Government.

Suo Motu v. Vatva Industries Association Ahmedabad and Others AIR 2000, GUJ 33

Suo Motu action was taken by a Division Bench on the basis of a note prepared by an Assistant

Environmental Engineer of the Gujarat Pollution Control Board. The note was directly submitted to

the High Court through the Board's Counsel, with a request to take action against the defaulting

unites and issue necessary directions to the respondents to take steps to stop unauthorized

movements/ disposal of waste by their member unit. Moreover, it was noted that during the visits

and inspections Board officials observed huge quantities of hazardous waste being dumped near

Ramol Village. Precedents were cited for court's actions in similar circumstances. Admitting the note

as a petition The counsel for the Board was directed to investigate into the facts against the

proprietor of the dumping site as well as the persons responsible for dumping the industrial wastes.

The court also directed the defaulting industries to pay Rs. 20,000 each for the default committed by

them. In the order the court observed that it was the function of the Board and its officers to take

action under the Act when they noticed huge quantifies of hazardous waste dumped and they were

not required under the statute to bring it to the notice of the High Court for seeking directions on

the units to stop unauthorized movements and/or disposal of waste. Otherwise, such nefarious

activities by the polluting units would continue unabated under the pretext of pendency of the

matter before the court.

U.P. Pollution Control Board Vs. M/S Mohan Meakins Ltd., and Ors 2000(2) SCALE

The Special Leave Petition before the Supreme Court was related to trade effluents discharged by an

industrial unit in river "Gomati", a tributary of Ganga. The basic question for consideration before

the Supreme Court was to consider whether the session judge, Lucknow was in error in quashing the

issuance of problems by the trial court.

The Supreme Court in on Municipal Corporation of Delhi v. Purushotham Das AIR 1983(1) SCC 9.

Where it was pointed out that the active role played by the directors can make the directors of the

company liable. The Court observed that when the sample trade effluents collected by the Pollution

Control Board Officials from the drain just outside the plant inside the factory and from the irrigation

plant revealed that the composition effluents were beyond the standard laid down for the purpose,

there was no reason why the company would not be punished for violating section 24 of the Act.

The directors of the company in this case are guilty of offence under section 43 of the Water Act. On

the submission made by the Counsel for the Company to discharge the director's of the company on

the ground of lapse of a long time, the Court observed that lapse of such long period cannot be a

reason to absolve the respondents from the trial. The Court observed that the discharge of noxious

polluting effluents to streams inflicts injury on the public health at large, and causes irreparable

impairment on the aquatic organisms, and imposes deleterious effect on the life and health of

animals. The Court said that it cannot deal with the prosecution of the offences under this Act in a

casual routine matter. The Court in their order set aside the impugned judgment of the High Court

and directed the lower court to proceed with the trial and dispose of the same as expeditiously as

possible.

Centre for Social Justice [Jan Vikas] v. Union of India Special Civil Application 8529/99 Date of order

17/2/2000.

Centre for Social Justice [Jan Vikas] v. Union of India Special Civil Application 8529/99 Date of order

17/2/2000. The petitioner, a voluntary organization working in the area of environment filed a Public

Interest Petition challenging the manner in which notifications issued by the Government of India

under Environment Protection Act 1986 were not being complied with in matters relating to the

grant of environmental clearance. The petition also challenged the environmental clearance given to

the Dhuvaran Thermal Power project on the ground that the public hearing proceedings were ab

initio void. In this respect, the petitioner asserted that notices for public hearing in respect of

applications made by 20 units for environmental clearance, certificates were attended by the

representatives of the petitioner's organization. It was found that the public hearing process was

defective and not serving the purpose for which the public hearings were organized by the

authorities. The petitioner prayed before the court, to enunciate correct principles regarding the

scope of public hearing as provided in the aforesaid notification. The petitioner submitted before the

court that the authorities were holding public hearing at district quarters and the victims of

developmental activities were not in a position to attend the hearing. So the venue of the public

hearing should be fixed either at the site of the proposed project or at the office of Gram Panchayats

of the concerned village. It was alleged by the petitioner that the notification for public hearing was

published in newspapers having comparatively less circulation but having official patronage. The

petitioner also alleged that the executive summary required to be furnished by the project

proponent was very often not available at the local level. Due to lack of access to information the

local participation in the public hearing is minimal. The petitioner submitted that there was no

quorum in a public hearing meet and sometimes there were no technical and qualified persons

present on the panel. The minutes of the public hearing were either not recorded or not provided to

the participants of public hearing. So the persons who had raised objections before the public

hearing committee were not aware whether their objections had been recorded and considered.

The petition also stated that since authorities did not communicate the grant of environmental

clearance certificates to the objectors, the statutory right of preferring an appeal under National

Environment Appellate Authority Act 1997 was illusory. The respondents in the reply stated that all

the norms of public hearing had been complied with and no illegality or fault had been committed

by the panel in respect of public hearing. The Court after going through the submissions made by

both respondents and petitioner issued a series of directions to the State Government. The gist of

the orders, the venue of the public hearing had to be easily accessible to the public.

1) The venue of the public hearing had to be made easily accessible to the public

2) The State Government had to ensure that the notice of the public hearing was publicized

effectively through vernacular papers published locally as well as through the panchayats etc.

3) A minimum wait period of 30 days from the date of notice of the hearing was prescribed before

holding the actual hearing. Direction to make available, summary of EIA reports in local language

was also prescribed for the GPCB.

4) A compulsory quorum for the committee was prescribed which included half the members as well

as the compulsory presence of the officers from the GPCB and the department of Environment and

Forests and three Sr. citizens.

5) Ensuring that the minutes of the public hearing as sent to the Environmental Impact Agency or the

MoEF was made available even if a nominal fees was charged for the same. It also issue direction to

ensure the clearance certificate were made available to the public and to publish the gist of the

same in Newspapers. The court also issue directions with respect to the method in which the GPCB

could generate some revenue to cover the expenses. While the judgement reiterates the EIA

Notification, some ambiguous aspects have been clarified.

Center for Social Justice [Janvikas] V. Union Of India. Spl. C. A, GJLR Vol. XLI (3) 2000, 1997

J. M. Shah and J. R. R Tripathi, JJ.

This petition under Art. 226 of the Constitution, the Center for Social Justice [a public trust

registered under the Bombay Public Trusts Act, 1950 which is engaged in various activities relating to

social justice and human rights since 1994] has challenged the manner in which notification issued

by the Government of India under the Environment [Protection] Act, 1986, in the matter of grant of

environmental clearance are not being complied with in letter and spirit. The petition also challenges

the environmental clearance given by the state government to the Gujarat Electricity Board,

Dhuvaran, Thermal Power Project, Anand on the ground that public hear petition. It is submitted

that although the statutory provisions provide for public hearing, the manner in which the

respondent-authorities are purporting to implement g, but it ing proceeding were ab initio void. The

petitioner also prays for certain directions to the respondent authorities about the manner in which

the public hearing should be conducted and public hearing should be made effective and meaningful

so as to achieve the object of the EP Act, 1986.

It is on account of the difficulties faced by the petitioner-trust at the time of participating at such

public hearing in respect of 20 units that the petitioner-trust has been constrained to file this

petition. It is submitted that although the statutory provision provide for public hearing, the manner

in which the respondent -authorities are purporting to implement the provisions is such that the

public hearing does not becomes merely a formality and the entire idea of inviting local people to

participate at the hearing is frustrated.

The court thus made the following observation:

1. Venue of Public Hearings:

The District Collector is the Convenor of the Committee, and as a matter of practice, the Collectors

are holding such public hearings at the district head-quarters. Considering the distance between the

district head-quarters and the site at which the project is going to be put up and considering the fact

that the persons who are likely to be most affected by the environmental degradation are people

belonging to the lower economic strata of the society, it would not be unreasonable to expect that

the G.P.C.B. and the concerned authorities will hold the public hearings at places near the project

site or the affected village. Even if, there cannot be any hard and fast rule about the venue of such

meetings but it appears to us that looking to the comparatively less distance between the taluka

head-quarters and the villages where such projects are being put up, it would be more convenient

for the local people if such public hearings are held at least at the taluka head-quarters. This will also

take care of the argument on behalf of the G.P.C.B that the project may cover more than one

villages.

As regards the period of notice, it is submitted that the period of public notice regarding public

hearing should be at least three months.

2. Publication and Intimation:

As regards the newspapers in which the public notice for such public hearings are to be published,

the Rules specifically provide that the publication has to be made in atleast two newspapers having

wide circulation in the area. The purpose of publication is obvious that the people likely to be

affected must be informed about the public hearing at which they can raise their objections or make

their suggestions. This purpose would not be served if the notice is published in any obscure

newspaper.

Another facet of wider publication is that there are many semi-literate or even literature persons

who may not read newspapers, but they may get information about the proposed project, if the

public notice is sent by the G.P.C.B. to the concerned Gram Panchayat also, as the members of the

Gram Panchayat would bring it to the notice of the local people.

3. Access to Documents:

While the G.P.C.B. is ready and willing to supply copies of the executive summary to the Non-

Governmental organisations approaching the G.P.C.B. such reports are not being made available by

the local offices designated in the notification on the ground that the access means only perusal and

not the copy of the report. It is obvious that looking to the nature of the executive summary and the

nature of the public hearings, it would not be sufficient for the local residents only to read the

executive summary, even if it is in Gujarat. Copy of such summary must be made available to the

persons who ask for such summary for which there may be a nominal charge, if at all required, so as

to enable the local residents and the association existing in the filed of environment to participate at

the public hearings.

Learned Counsel for the petitioner submits that the executive summary is prepared by the unit and

since the unit is otherwise also required to submit the environmental impact assessment report to

the G.P.C.B., the summary of environmental impact assessment report must also form a part of the

executive summary as that is going to be a part of the discussion at the public hearing.

4. Quorum at the Public Hearings:

It is obvious that if a large number of members of the Committee are absent, the public hearing may

become illusory. In the instant case, the notification prescribing the procedure for public hearing

requires, inter alia, appointment of an officer of the G.P.C.B., an officer from the department of

Environment and Forest, and three senior citizens of the area nominated by the District Collector. If

all these persons are absent, the Committee will only consist of Government/Panchayat officers and

the very purpose of nominating the former categories of persons on the Committee would be

frustrated.

To put it differently, at least the officer of the G.P.C.B., the officer from the Department of

Environment and Forest and at least one senior citizen nominated by the Collector will have to

remain present in order to prevent the public hearing from being rendered invalid.

5. Nomination of persons to the Panel:

Another aspect which is required to be considered is that while nominating three senior citizens on

the Committee, the Collector shall also consider that at least one of the three senior citizens (not

necessarily above the age of 65 years) should have some credentials on the issues of environmental

concerns.

6. Minutes of the Public Hearing:

Learned Counsel for the G.P.C.B. has stated that if and when any person approaches for copies of

such minutes, such copies are being supplied.

It is not possible to make any hard and fast rule but the Committee must keep in mind the spirit of

the notification for public hearing and particularly to the object for which the public hearing and

particularly the object for which the public hearing is to be held.

7. Environmental Clearance Certificate:

Regarding the environment clearance certificate, it is obvious that if the persons who have

participated at the public hearing or other persons who are aggrieved by action of any other

authorities of the Central Government are desirous of filing an appeal before the National

Environmental Appellate Authority Act, 1997, they would not be in a position to file such appeal, if

the authorities do not make them aware that a particular unit is granted the environmental

clearance certificate.

It is true that it is not for the Court to examine the merits or demerits of a policy laid down by

regulation-making body, but in the instant case, the petitioner is not challenging the wisdom of any

policy or the measures enacted by the rule making authority for implementing that policy. The

grievance of the petitioner is that in spite of the fact that the rule making authority has laid down

the policy and has provided the measures for implementing that policy, on account of the wooden-

headed and arbitrary approach on the part of the implementing authority, the purpose of the public

hearing is not being achieved, and that, therefore, the petitioner is not challenging either the

notification issued by the Central Government or the resolution passed by the State Government for

implementing that notification.

This Court does not propose to ask the Central Government or the State Government to amend any

notification, but when the Court finds that while exercising the power conferred on it, if the

implementing agency does not pay heed to the object for which the power is conferred, the Court

can give appropriate directions to the authorities to act in accordance with the notification as

interpreted by the Court in light of the submissions made at the hearing of the petition.

R.A. Goel v. Union of India and Others AIR 2000 P& H 320

The Haryana Chamber of Commerce and Industry through its Chairman made a complaint to the

Commissioner and Secretary to the Government of Haryana Departments of Industries and

Environment complaining against the non-compliance of the Government policy by the Board. The

grievance made therein, was, even thought he Government had decided that no NOC would be

required to be obtained by a small scale industrial unit except by 17 categories of highly polluting

industries identified by the Government of India and 19 categories of highly polluting industries

identified by the Board and despite an earlier decision of the Board to the same effect, the regional

offices of the Board were issuing notices to various small scale industrial units to obtain consent

under the Water Act and under S.21 of the Air (Prevention and Control of Pollution) Act, 1981. This is

inspite of those units neither falling in the 17 types of highly polluting industries nor in the 19 types

of polluting industries as identified by the Board.

The Chamber requested the State Government to issue instructions to the Board to implement the

Government orders and the Government industrial policy and save the small scale industrial units

from harassment being caused by this whimsical action of the Board and a copy of this complaint

was forwarded to the Board for its comments. To this the Member Secretary of the Board informed

the State Government that they had no right to issue such administrative orders as no such orders

could be issued in infringement of the Water Act and the Air Act and also the Environment

Protection Act. Consequently recommendation was sent by Commissioner of Industries for

supersession of Board.

Against this recommendation, for supersession of the board, this case came up fore hearing.

The court held that a detailed perusal of the files of the two departments of the Government leaves

no room for doubt that the action of the State Government in superseding the Board was not

actuated by any mala fide intentions but was governed purely by the interest of the State for

promoting its industrial growth.

Thus the order of supersession passed by the State Government would not be illegal. It was with a

view to attract small scale industries and to give impetus to them that the Government at its highest

level had decided not to ask for NOCs from them except from the 36 highly polluting industries

identified by the Government of India and the Board. The conduct of the Board in insisting for such

NOCs from all the industries was against Government policy, which was bound to adversely affect

industrial growth in the State. This was leading to discontent in the industry and numerous

complaints against the Board were being received by the Government. The Government was, thus,

justified in forming an opinion that circumstances existed which necessitated supersession of the

Board.

The State Government on examination of the material available with it came to the conclusion that

circumstances existed which render it necessary in public interest to supersede the Board, the court

observed, it is not necessary to issue any show cause notice either to the Board or to any member

thereof.

The Parliament has by necessary implication excluded the principles of natural justice when the

Board is to be superseded in public interest for reasons.

As regards the allegations of mala fides made by the petitioner against respondent No. 5- Smt.

Sushma Swaraj, the then Union Minister of Information and Broadcasting, the court held that, to say

the least, are wholly baseless and misconceived.

Narmada Bachao Andolan v. Union of India & Others SC 319 of 1994, 18 Oct. 2000

[2000] 4 Law Reports of India

Dr. A. S Anand CJI, SP Bharucha and BN Kirpal, JJ.

Constitution of India

Fundamental rights - Decision to build dam taken in pursuance to which land acquired --- whether

fundamental rights of oustees violated---- whether forcible displacement of tribals from their land

violative of their fundamental rights--constitution of India Art. 21 --- Inter State Water Disputes Act

1956.

Constitution of India

Judiciary - Supreme Court --- Jurisdiction--whether courts, in exercise of their jurisdiction, can

transgress into field of policy decision.

Environment protection and Control

Decision to build dam taken - In 1987 ministry of Environment and Forest according environmental

clearance to build dam subject to certain conditions - whether environment clearance granted in

1987 without proper application of mind.

Limitation of Actions

Laches--- whether petitioner agitating against dam since 1986 guilty of laches in approaching the

court in 1994--whether laches applicable to public interest litigation --- whether in cases of petitions

termed as PIL ordinary principles applicable to litigation will not apply

Public Interest Litigation

Decision to build dam taken in pursuance of agreement arrived at between Sates of M. P and Gujarat

---- M. P not ratifying agrrement and matter referred to Tribunal --- Tribunal giving award, giving

State of Gujarat right to construct dam upto height of 455 ft---whether issue decided by tribunal

binding on states--

Water

Dams--Decision to build dams--- construction of dams commencing in 1987--- whether project in

national interest.

The petitioner is an anti-dam organisation in existence since 1986 but has chosen to challenge the

clearance given in 1987 by filling a writ petition in 1994. The petitioner which had been agitating

against the dam since 1986 is guilty of laches in not approaching the court at an earlier point of time.

The petitioners have been agitating against the construction of the dam since 1986, before

environmental clearance was given and construction started. It has, over the years, chosen different

paths to oppose the dam. Having failed in the attempt to stall the project the petitioner has resorted

to court proceedings by filing this writ petition long after the environmental clearance was given and

construction started. The pleas relating to height of the dam and the extent of submergence,

environment studies and clearance, hydrology, seismicity and other issues, except implementation

of relief and rehabilitation.

The court justified, having entertained this petition with a view to satisfy itself that there has been

proper implementation of the relief and rehabilitation measures at least to the extent they have

been ordered by the tribunal's award. In short it was only the concern of this court for the

protection of the fundamental rights of the oustees under Art. 21 of the Constitution of India which

led to the entertaining of this petition.

Any issue which has been decided by the tribunal would, in law, be binding on the respective states.

Once the award is binding on the states, it will not be open to a third party like the petitioner to

challenge the correctness thereof. In terms of the award, the State of Gujarat has a right to construct

a dam upto the height of 455 ft and, at the same time, the oustees have a right to demand relief and

resettlement as directed in the award.

The ILO Convention 107 stipulated that tribal population shall not be removed from their lands

without their free consent from their habitual territories except in accordance with national laws

and regulations for reasons relating to national security or in the interest of national economic

development. The said article clearly suggested that when the removal of the tribal population is

necessary as an exceptional measure, they shall be provided with land of quality at least equal to

that of the land previously occupied by them and they shall be fully compensated for any resulting

loss or injury.

From various documents referred to it is more than evident that the Government of India was

deeply concerned with the environmental aspects of the Narmada Sagar and Sardar Sarovar Project.

In as much as there was some difference of opinion between the Ministries of Water Resources and

Environment and Forests with regard to the grant of environmental clearance, the matter was

referred to the Prime Minister. Therefore, series of discussions took place in the Prime Minister's

Secretariat and the concern of the Prime Minister with regard to the environment and desire to

safeguard the interest of the tribals resulted in some time being taken. The Prime Minister gave

environmental clearance on 13 April 1987 and formal letter was issued thereafter on 24 June 1987.

It is not possible, in view of the aforesaid state of affairs, for the court to accept the contention of

the petitioner that the environmental clearance of the project was given without application of

mind.

Though, there was some slippage in Madhya Pradesh, however, overall works by and large were on

schedule. This clearly showed that the monitoring of the catchment treatment plan was being done

by the Environmental Sub-group quite effectively.

It is thus seen that there is in place an elaborate network of authorities which have to see to the

execution and implementation of the project in terms of the award. All aspects of the project are

supervised and there is a Review Committee which can review any decision of the Narmada Control

Authority and each of three rehabilitating states have set up an independent Grievances Redressal

Authority to take care that the relief and rehabiltiation measures are properly implemented and the

grievances, if any, of the oustees are redressed.

The court further held that it is satisfied, as more than adequate steps are being taken by the State

of Gujarat not only to implement the award of the tribunal to the extent it grants relief to the

oustees but the effort is to substantially improve thereon and, therefore, continued monitoring by

this court may not be necessary. The rehabilitation package contained in the award of the tribunal as

improved further by the State of Gujarat and the other states prima facie shows that the land

required to be allotted to the tribals is likely to be equal, if not better, than what they had owned.

The allegation that the said project was not in the national or public interest is not correct seeing the

need of water for a burgeoning population which is most critical and important. Keeping in view the

need to augment water supply, it is necessary that water storage capacities have to be increased

adequately in order to ward off the difficulties in the event of monsoon failure as well as to meet the

demand during dry season.

The displacement of the tribals and other persons would not per se result in the violation of their

fundamental or other rights. The effect is to see that on their rehabilitation at new locations they are

better off than what they were. At the rehabilitation sites, they will have more better amenities than

which they enjoyed in their tribal hamlets. The gradual assimilation in the main stream of the society

will lead to betterment and progress.

The courts, in the exercise of their jurisdiction, held will not transgress into the field of policy

decision. The court, no doubt, has a duty to see that in the undertaking of a decision, no law is

violated and people's fundamental rights are not transgressed upon except to the extent permissible

under the Constitution. Even then any challenge to such a policy decision must be before the

execution of the project is undertaken. Any delay in the execution of the project means over run in

costs and the decision to undertake a project, if challenged after the execution has commenced,

should be thrown out at the very threshold on the ground of laches if the petitioner had the

knowledge of such a decision and could have approached the court at that time. Just because a

petition is termed as a PIL does not mean that ordinary principles applicable to litigation will not

apply. Laches is one of them.

In a democratic set up, it is for the elected government to decide what project should be undertaken

for the benefit of the people. Once such a decision had been taken that unless and until it can be

proved or shown that there is a blatant illegality in undertaking the project or in its execution, the

court ought not to interfere with the execution of the project.

While issuing directions and disposing of this case, two conditions have to be kept in mind, (i)the

completion of project at the earliest and (ii)ensuring compliance with conditions on which clearance

of the project was given including completion of relief and rehabilitation work and taking of a

meliorative and compensatory measures for environmental protection in compliance with the

scheme framed by the Government thereby protecting the rights under Art. 21 of the Constitution.

Keeping these principles in view, the court issued the following directions.

(1) Construction of the dam will continue as per the award of the tribunal

(2) As the relief and rehabilitation sub-group has cleared the construction up to 90 meters, the same

can be undertaken immediately. Further raising of the height will be only pari passu with the

implementation of the relief and rehabilitation and on the clearance by the Relief and Rehabilitation

Sub-group after consulting the three Grievances Redressal Authorities.

(3) The Environment Sub-group will consider and give, at each stage of the construction of the dam,

environment clearance before further construction beyond 90 meters can be undertaken.

The permission to raise the dam height beyond 90 meters will be given by the Narmada Control

Authority, from time to time, after it obtains the above mentioned clearances from the Relief and

Rehabilitation Sub-group and the Environment Sub-group.

The States of Madhya Pradesh, Maharashtra and Gujarat are directed to implement the award and

give relief and rehabilitation to the oustees in terms of the packages offered by them and these

States shall comply with any direction in this regard which is given either by the NCA or the Review

Committee or the Grievances Redressal Authorities.

Even though there has been substantial compliance with the conditions imposed under the

environmental clearance the NCA and the Environment Sub-group will continue to monitor and

ensure that all steps are taken not only to protect but to restore and improve the environment.

The NCA will within four weeks from today draw up an action plan in relation to further construction

and the relief and rehabilitation work to be undertaken. Such an action plan will fix a time frame so

as to ensure relief and rehabilitation pari passu with the increase in the height of the dam.

The Review Committee shall meet whenever required to do so in the event of there being any un-

resolved dispute on an issue which is before the NCA. In any event the Review Committee shall meet

at lest once in three months so as to oversee the progress of construction of the dam and

implementation of the R & R programmes.

If for any reason serious differences in implementation of the award arise and the same cannot be

resolved in the Review Committee, the Committee may refer the same to the Prime Minister whose

decision, in respect thereof, shall be final and binding on all concerned.

(9) The Grievances Redressal Authorities will be at liberty, in case the needs arises, to issue

appropriate directions to the respective states for due implementation of the R & R programmes

and in case of non-implementation of its directions, the GRAs will be at liberty to approach the

Review Committee for appropriate orders.

Every endeavour shall be made to see that the project is completed as expeditiously as possible.

The court held, When such projects are undertaken and hundreds of crores of public money is spent,

individual or organisations in the garb of PIL cannot be permitted to challenge the policy decision

taken after a lapse of time. It is against national interest and contrary to the established principles of

law that decisions to undertake development projects are permitted to be challenged after a

number of years during which period public money has been spent in the execution of the project.

All India Mobile Zoo Owners and Animal Welfare Association v. Union of India AIR 2000 Delhi 449

The petitioner prayed the Court to issue a writ of mandamus directing the Wild Life Warden under

the Wild Life Protection Act 1972, for adequate compensation of Rs. 15 to 20 lacs inthe event of the

closure of the zoo, as order by the Warden under the Act. The Petitioner's challenge for recognition

of their Mobile Zoos under sec. 28(H) of the Wild Life Act. As they had failed, they were left with no

other alternative but to surrender the animals before the Wild Life Warden for which they seek

instruction from the Court for compensation. The Court after hearing both the parites, held that the

petitioners were entitled to compensation as regards animals, the posession and holding of which

was not illegal under the Act of 1972, but were surrendered tot he authorites. But as to the holding

of animals which was illegal and expressly prohibited under the Act, no such compenstion need to

be paid, nor any ex gratia payment could be made, as the petitioners were holding the animals

without the permission of the authorities.